Citation Nr: 0516373
Decision Date: 06/16/05 Archive Date: 06/27/05
DOCKET NO. 03-32 652 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to an increased original evaluation for
peripheral neuropathy of the left leg, currently rated as 10
percent disabling.
2. Entitlement to an increased original evaluation for
peripheral neuropathy of the right leg, currently rated as 10
percent disabling.
3. Entitlement to a compensable original evaluation for
coronary artery disease, currently rated as 0 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Robert C. Scharnberger, Counsel
INTRODUCTION
The veteran served on active duty from October 1966 to
September 1968.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from September 2002 and June 2003 rating
decisions of the Detroit, Michigan, Department of Veterans
Affairs (VA) Regional Office (RO).
FINDINGS OF FACT
1. All evidence necessary for an equitable adjudication of
the veteran's claims has been obtained or requested by the
RO.
2. The veteran's peripheral neuropathy of the left and right
legs is manifested by pain in the feet and toes, a slight
loss of sensation, and no more than mild incomplete paralysis
of the external popliteal nerve.
3. An exercise stress test revealed that a workload of
greater than 7 METs but not greater than 10 METs did not
result in dyspnea, fatigue, angina, dizziness, or syncope,
nor is continuous medication required.
4. The veteran's coronary artery disease is not manifested
by any other symptoms.
CONCLUSIONS OF LAW
1. The criteria for an original evaluation in excess of 10
percent for the veteran's peripheral neuropathy of the left
leg, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002);
38 C.F.R. § 4.124a, Diagnostic Code (DC) 8521 (2004).
2. The criteria for an original evaluation in excess of 10
percent for the veteran's peripheral neuropathy of the right
leg, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002);
38 C.F.R. § 4.124a, Diagnostic Code (DC) 8521 (2004).
3. The criteria for an original compensable evaluation for
the veteran's coronary artery disease, currently rated as
non-compensable, are not met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005
(2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Background
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). The VCAA
imposes obligations on VA in terms of its duties to notify
and assist claimants.
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and his representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3/159 (b) (2004); Quartuccio v. Principi. 16 Vet.
App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112,
120-21 (2004), the United Stats Court of Appeals for Veterans
Claims (Court) held that VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
and (3) that the claimant is expected to provide. The Court
also held that VA must request that the claimant provide any
evidence in his possession that pertains to the claim. Id.
This "fourth element" comes from the language of 38 C.F.R.
§ 3.159(b)(1).
The Board finds that the VCAA notice requirements have been
satisfied. With regard to element (1), above, the Board
notes that the RO sent the veteran a VCAA notice letter in
June 2002 that informed him of the type of information and
evidence necessary to establish entitlement to service
connection and what was necessary for his claim to be
granted. The RO has not sent a second VCAA letter detailing
the later claim for increased ratings. There is no
requirement that a second letter be sent. See, VAOPGCPREC 8-
2003 (Dec. 22, 2003). In addition, by virtue of the rating
decisions on appeal, and the statement of the case (SOC), he
was provided with specific information as to why his claims
seeking increased ratings were being denied, and of the
evidence that was lacking.
With regard to elements (2) and (3), the Board notes that the
RO' June 2002 letter notified the veteran of his and VA's
respective responsibilities for obtaining information and
evidence under the VCAA. More specifically, the letter
explained that VA would help him get such things as medical
records, or records from other Federal agencies, but that he
was responsible for providing any necessary releases and
enough information about the records so that VA could request
them from the person or agency that had them.
Finally, with respect to element (4), the Board notes that
the RO's June 2002 letter contained a specific request that
the veteran submit any medical records he had and to submit
evidence in support of his claim. He was asked to tell VA
about any other records that might exist to support his
claim. In addition, he was supplied with the complete text
of 38 C.F.R. § 3.159(b)(1) by way of an October 2003 SOC.
The Board is mindful that, in concluding that the VCAA notice
requirements have been satisfied, the Board has relied on
communications other than the RO's formal VCAA notice letters
to the claimant. However, at its core, what the VCAA seeks
to achieve is to give the appellant notice of the elements
outlined above. Once that has been done irrespective of
whether it has been done by way of a single notice letter, or
via more than one communication the essential purposes of the
VCAA have been satisfied. Here, the Board finds that,
because each of the four content requirements of a VCAA
notice has been met, any error in not providing a single
notice to the appellant covering all content requirements was
harmless. See, e.g., 38 C.F.R. § 20.1102 (2004); Mayfield v.
Nicholson, No. 02-1077 (U.S. Vet. App. Apr. 14, 2005).
Second, VA has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A (West 2002); 38 C.F.R. § 3.159(c) (2004). The RO
obtained service medical records, private medical records,
and provided the veteran with a VA examination. The veteran
has not indicated that there is additional evidence
available.
Thus, on appellate review, the Board sees no areas in which
further development is needed. The RO has essentially met
the requirements of the VCAA, and there would be no benefit
in developing this case further. See Soyini v. Derwinski, 1
Vet. App. 540, 546 (1991) (strict adherence to requirements
in the law does not dictate an unquestioning, blind adherence
in the face of overwhelming evidence in support of the result
in a particular case; such adherence would result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the appellant); Sabonis v. Brown, 6 Vet.
App. 426, 430 (1994) (remands which would only result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the appellant are to be avoided). Under
these circumstances, adjudication of this appeal, without
referral to the RO for further consideration of the claim
under the VCAA, poses no prejudice to the appellant. See
Bernard v. Brown, 4 Vet. App. at 394; VAOPGCPREC 16-92.
II. Increased rating
Disability evaluations are determined by the application of a
schedule of ratings that is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155. Percentage evaluations
are determined by comparing the manifestations of a
particular disorder with the requirements contained in the
VA's Schedule for Rating Disabilities (Rating Schedule), 38
C.F.R. Part 4. The percentage ratings contained in the
Rating Schedule represent, as far as can practically be
determined, the average impairment in earning capacity
resulting from such disease or injury and their residual
conditions in civilian occupations. 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1 (2004).
In considering the severity of a disability, it is essential
to trace the medical history of the veteran. 38 C.F.R. §§
4.1, 4.2, 4.41 (2004); Schafrath v. Derwinski, 1 Vet. App.
589, 594 (1991). While the regulations require review of the
recorded history of a disability by the adjudicator to ensure
a more accurate evaluation, the regulations do not give past
medical reports precedence over the current medical findings.
However, in Fenderson v. West, 12 Vet. App. 119 (1999), it
was held that evidence to be considered in the appeal of an
initial assignment of a rating disability was not limited to
that reflecting the then current severity of the disorder.
Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Therefore, the Board will consider all evidence of record.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2004).
A. Peripheral neuropathy
The veteran was granted entitlement to service connection for
peripheral neuropathy of the legs by rating decision dated in
September 2002. Service connection was established as being
secondary to service-connected diabetes mellitus.
The veteran underwent a VA examination in July 2002. The
veteran stated that his only limitation of activity is that
he cannot walk as far as he would like due to paresthesias in
his feet. The neurological examination revealed the mild
paresthesias in both feet with no other focal deficits noted.
There were good pulses in the feet. Monofiliment testing in
both feet was slightly diminished but present.
The private treatment records also indicate the veteran has
pain and paresthesias in his feet. Dr. Florin Stuleanu wrote
a letter in June 2003 indicating the veteran had moderate
diabetic neuropathy. Dr. Stuleanu did not give any basis for
this opinion.
Treatment records from Dr. Francine Vriesendorp dated in
March 2002 indicate that the veteran complained of swelling
in his big toes. The veteran also complained of tingling in
his feet. On examination, Dr. Vriesendorp found mildly
decreased pinprick perception in the distal toes up until
about 1 to 2 centimeters onto the foot bilaterally.
Vibratory perception and proprioception were intact. Deep
tendon reflexes were 1+ at the knees and absent at the
ankles. The plantar reflexes were flexor. Heel to shin
testing was normal. The veteran was able to walk normally
and was able to walk on his heels and toes without any
problem.
Private medical records from Dr. Alan McKenzie dated in
September 2002 indicate that the pulse in the veteran's left
foot were excellent and a bit diminished in the right foot
but still pretty good. Color and temperature of the feet
were excellent. Sensation was slightly diminished.
The assignment of a particular Diagnostic Code is "completely
dependent on the facts of a particular case" and involves
consideration of such factors as an individual's relevant
medical history, the current diagnosis, and demonstrated
symptomatology. Butts v. Brown, 5 Vet. App. 532, 538 (1993).
In rating disability involving injury to the peripheral
nerves and their residuals, attention is to be given to the
site and character of injury, the relative impairment in
motor function, trophic changes, or sensory disturbances.
38 C.F.R. § 4.120 (2004).
Neuritis, cranial or peripheral, characterized by loss of
reflexes, muscle atrophy, sensory disturbances, and constant
pain, at times excruciating, is to be rated on the scale
provided for injury of the nerve involved, with a maximum
equal to severe, incomplete paralysis. 38 C.F.R. § 4.123
(2004). The maximum rating which may be assigned for
neuritis not characterized by organic changes as noted above
will be that for moderate, or with sciatic nerve involvement,
for moderately severe, incomplete paralysis. Id. Neuralgia,
cranial or peripheral, characterized usually by a dull and
intermittent pain, of typical distribution so as to identify
the nerve, is to be rated on the same scale, with a maximum
equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124
(2004).
In rating diseases of the peripheral nerves, the term
"incomplete paralysis" indicates a degree of lost or
impaired function substantially less than the type picture
for complete paralysis given with each nerve, whether due to
varied level of the nerve lesion or to partial regeneration.
38 C.F.R. § 4.124a (2004). When the involvement is wholly
sensory, the rating should be for the mild, or at most, the
moderate degree. Id. The ratings for peripheral nerves are
for unilateral involvement; when bilateral, they are combined
with application of the bilateral factor. Id. The use of
terminology such as "mild," "moderate" and "severe" by VA
examiners and others, although an element of evidence to be
considered by the Board, is not dispositive of an issue. 38
C.F.R. §§ 4.2, 4.6 (2004).
Diagnostic Code 8521 provides the rating criteria for
paralysis of the external popliteal nerve, and therefore
neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a,
Diagnostic Code 8521 (2004). Complete paralysis of the
external popliteal nerve, which is rated as 40 percent
disabling, contemplates foot drop and slight droop of first
phalanges of all toes, cannot dorsiflex the foot, extension
of proximal phalanges of toes lost; abduction of foot lost,
adduction weakened; anesthesia covers entire dorsum of foot
and toes. Id. Disability ratings of 10 percent, 20 percent
and 30 percent are assignable for incomplete paralysis which
is mild, moderate or severe in degree, respectively. Id.
Diagnostic Code 8621 refers to neuritis of the external
popliteal nerve while Diagnostic Code 8721 refers to
neuralgia of the external popliteal nerve.
The veteran's neuropathy of the left and right leg is
manifested by paresthesias and some slight difficulty walking
for long distances. There is some evidence of loss of
sensation, but the veteran is able to walk with a normal
gait, is able to heel and toe walk, and is able to perform
all activities of normal life. The evidence shows there is
an absence of deep tendon reflexes in the ankles. There are
no other organic changes present such as muscular atrophy or
trophic changes. The Board finds that such symptoms are
compatible with incomplete paralysis of the external
popliteal nerve which is not more than mild in degree. The
medical evidence establishes that the veteran suffers from
paresthesias in his feet and some loss of sensation, but
there is very little functional limitation associated with
his peripheral neuropathy. The Board notes that one of the
veteran's doctors has described the disability as
"moderate" but with no other detail from that physician,
and in light of the evidence showing only a very small loss
of function, the Board finds that the veteran's disability
does not more closely approximate moderate incomplete
paralysis of the external popliteal nerve, and therefore a
disability rating in excess of 10 percent for the peripheral
neuropathy of the left and right leg, is not warranted.
38 U.S.C.A. § 4.124a, Diagnostic Code 8521 (2004).
B. Coronary Artery Disease
The veteran was granted service connection for coronary
artery disease by rating decision dated in June 2003. The
veteran was assigned a non-compensable rating and he
appealed, seeking a higher rating.
The veteran has been diagnosed with coronary artery disease
and underwent angioplasty of the right coronary artery in
March 2002. The heart disease is secondary to the veteran's
service-connected diabetes.
The medical evidence does not establish that the veteran is
taking continuous medication for his coronary heart disease.
He is taking medication for diabetes and has been prescribed
beta-blockers at times for his heart disease but has not used
them continuously.
The veteran underwent a VA examination in July 2002 and an
exercise stress test was performed. An addendum to the VA
examination in June 2003 indicates that the veteran had an
ejection fraction of 60 percent and performed the work
equivalent of 11 METs.
A report from Dr. Juan Mesa, the veteran's cardiologist,
dated in April 2002, indicates that the veteran is
asymptomatic from a cardiac standpoint and is in functional
class I for angina or congestive heart failure with no
symptoms at rest or exercise.
Under the regulations, a 10 percent rating is warranted for
coronary artery disease where a "workload of greater than 7
METs but not greater than 10 METs results in dyspnea,
fatigue, angina, dizziness, or syncope; or continuous
medication required". 38 C.F.R. § 4.104, DC 7005 (2004)
A higher rating, of 30 percent rating is warranted for
coronary artery disease where a "workload of greater than 5
METs but not greater than 7 METs results in dyspnea, fatigue,
angina, dizziness, or syncope, or; evidence of cardiac
hypertrophy or dilatation on electrocardiogram,
echocardiogram, or x-ray". Id.
There is no evidence that the veteran is taking continuous
medication for his heart disease, and his exercise stress
test showed the work equivalent of 11 METs with no symptoms.
His cardiologist, Dr. Mesa, has stated that the veteran's
heart disease is asymptomatic. The Board finds that there is
no basis for a compensable evaluation for the veteran's
coronary artery disease. Id.
In arriving at this conclusion, consideration has been given
to the doctrine of reasonable doubt; however, as discussed
above it is clear that the preponderance of the evidence
favors a denial of the claim. Accordingly, there is no
reasonable doubt to be resolved in the veteran's favor.
38 C.F.R. § 3.102 (2004).
III. Extraschedular rating
The RO has not expressly considered referral of the case to
the Under Secretary for Benefits or the Director,
Compensation and Pension Service for the assignment of an
extraschedular rating under 38 C.F.R. § 3.321(b)(1). This
regulation provides that to accord justice in an exceptional
case where the schedular standards are found to be
inadequate, the field station is authorized to refer the case
to the Under Secretary for Benefits or the Director,
Compensation and Pension Service for assignment of an
extraschedular evaluation commensurate with the average
earning capacity impairment. The criterion for such an award
is a finding that the case presents an exceptional or unusual
disability picture with related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical application of
regular schedular standards. The Court has held that the
Board is precluded by regulation from assigning an
extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the
first instance; however, the Board is not precluded from
raising this question, and in fact is obligated to liberally
read all documents and oral testimony of record and identify
all potential theories of entitlement to a benefit under the
law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996).
The Court further held that the Board must address referral
under 38 C.F.R. §3.321(b)(1) only where circumstances are
presented which the Director of VA's Compensation and Pension
Service might consider exceptional or unusual. Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995).
In this case, the evidence does not suggest that the
veteran's peripheral neuropathy or coronary artery disease
has caused marked employment interference or requires
frequent medical treatment. There is no current medical
evidence addressing the veteran's employability and no
evidence of hospitalization since 2002. Having reviewed the
record with these mandates in mind, the Board finds no basis
for further action. VAOPGCPREC. 6-96 (1996).
ORDER
Entitlement to an increased original evaluation for
peripheral neuropathy of the left leg, currently rated as 10
percent disabling, is denied.
Entitlement to an increased original evaluation for
peripheral neuropathy of the right leg, currently rated as 10
percent disabling, is denied.
Entitlement to an original compensable evaluation for
coronary artery disease is denied.
____________________________________________
C.W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs